Citation Nr: 20032874 Decision Date: 05/12/20 Archive Date: 05/12/20 DOCKET NO. 16-60 940 DATE: May 12, 2020 ORDER Service connection for an acquired psychiatric disorder is granted. Service connection for a low back disorder is denied. Service connection for peripheral neuropathy (PN) of the right lower extremity (RLE) is denied. Service connection for PN of the left lower extremity (LLE) is denied. FINDINGS OF FACT 1. The Veteran had active service from March 1956 to March 1959. 2. A current acquired psychiatric disorder has been related to events in service. 3. The Veteran reported incurring a back injury in service; however, a current lumbar spine disorder, diagnosed as chronic back pain and degenerative arthritis, was not continuous since service, was not shown to a compensable degree within one year of service, and is not casually or etiologically related to service. 4. PN of the RLE and LLE have not been medically associated with a service-connected disability. CONCLUSIONS OF LAW 1. An acquired psychiatric disorder was incurred in service. 38 U.S.C. §§ 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2019). 2. A low back disorder was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C. §§ 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2019). 3. PN of the RLE is not due to a service-connected disability. 38 U.S.C. §§ 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2019). 4. PN of the LLE is not due to a service-connected disability. 38 U.S.C. §§ 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Acquired Psychiatric Disorder As to a current disorder, the Veteran has been diagnosed with multiple psychiatric disorders. He was first diagnosed with depression in 2001 but in a December 2018 VA opinion, the clinician stated that the Veteran reported receiving psychiatric care since 1959. He also received a positive posttraumatic stress disorder (PTSD) score in 2012. Therefore, the first element of service connection is met. As to an in-service incurrence, the record reflects that the Veteran’s complete service treatment records (STRs) were lost in a fire. As such, the Board has considered a “heightened duty” to assist him in the development of the case, to explain its findings and conclusions, and to carefully consider the benefit-of-the-doubt rule. See O’Hare v. Derwinski, 1 Vet. App. 365 (1991). The Veteran has reported multiple in-service incurrences and contends that these events were the causes of his psychiatric problems. Specifically, on multiple occasions, he stated that he was tied to his bed and thrown out the window by two soldiers after reporting that they had missed bed check. In a May 2012 statement, a fellow soldier, E.W.N., reported that he personally witnessed this event. Further, in a September 2012 clinical record, the Veteran stated that he was beaten up in the shower by the two soldiers that had previously attacked him. At his hearing, he testified that his teeth were knocked out during this attack. In addition, in an October 2017 clinical record, the Veteran reported being sexually harassed in service on two occasions. He stated that he was discharged on recommendation from a civilian psychologist. In support of this contention, the evidence of record includes a July 1961 personnel record indicating that he was physically disqualified from the Reserve. As he has asserted multiple in-service incurrences, the second element of service connection is met. As to nexus, in an October 2017 opinion, the VA treating psychiatrist wrote that the Veteran’s a psychiatric disorder began in service due to a military sexual assault; however, no supporting rationale was provided. In a July 2018 letter, the same VA psychiatric opined that it was at least as likely as not that the Veteran’s PTSD began in service. He reasoned that the Veteran was first hospitalized in service in 1958 and was discharged from service as a result. He also noted that the Veteran was hospitalized in 1960 after a suicide attempt and began receiving psychiatric care in the 1970s. The psychiatrist found that no other risk factors were present to account for the Veteran’s symptoms of PTSD. The psychiatrist reaffirmed these statements in a December 2018 opinion. Further, in a May 2019 examination, the Veteran reported losing his “job” in-service after the in-service attacks that he experienced. He stated that he was sent home for 45 days and received a disciplinary action. Upon examination, the clinician opined that it was at least as likely as not that the Veteran’s psychiatric disorder was incurred in service. He noted that the Veteran had lost his job after experiencing military sexual trauma and that reduced work performance was common for an individual who would have experienced physical or sexual trauma. In evaluating the evidence of record, the evidence supports a finding that the Veteran’s acquired psychiatric disorder began in service. Specifically, the medical opinions support a finding that the current psychiatric symptomatology is due to his claimed in-service events. As such, the appeal is granted. Low Back Disorder As an initial matter, the Veteran has been diagnosed with degenerative arthritis. As it is a chronic disorder under § 3.309, both direct and presumptive service connection will be addressed. Turning first to direct service connection, chronic back pain was first noted in 2004 and arthritis in 2014. Therefore, a current disorder is shown, and the first element of direct service connection is met. As to an in-service incurrence, the record reflects that the Veteran’s complete STRs were lost in a fire. However, on multiple occasions, he reported that he was tied to his bed and thrown out the window by two soldiers after reporting that they had missed bed check. At his hearing, he testified before the undersigned that he had experienced back pain since this event. In a May 2012 statement, a fellow soldier, E.W.N., reported that he personally witnessed this event. As the Veteran has asserted an in-service back injury, the second element of service connection is met. As to nexus, in a May 2019 VA examination, the Veteran complained of back pain after participating in activities. Upon examination, the clinician opined that a back disorder was less likely than not incurred in service. He reasoned that there was no in-service complaints, diagnoses, or treatment for a back injury. There is no contradictory opinion. Therefore, the medical evidence does not support the claim for direct service connection. As to presumptive service connection, the STRs are unavailable and the Veteran has reported back pain in service but he is not competent to identify that he had a diagnosis related to his symptoms. Further, the medical evidence does not support continuity of symptomatology since service. While STRs are not available, the post-service medical evidence does not show that the Veteran was diagnosed with arthritis until 2014, more than 50 years after service. In an October 2018 letter, a private clinician related that he had treated the Veteran for over 20 years, dating the onset to as early as 1998, which is nearly 40 years after discharge. Even assuming symptoms as early as 1998 and he was discharged in 1959, the medical evidence does not support service connection on a “continuity of symptomatology” basis. Further, the disorder did not manifest itself to a degree of 10 percent or more within one year from the date of separation of service. As noted, the Veteran separated from service in 1959 but did not seek treatment until 1998 at the earliest, with a diagnosis of arthritis beginning in 2014. This evidence does not support presumptive service connection on a “manifest within one-year from separation” basis. Therefore, the medical evidence does not support presumptive service connection on any basis. PN of the RLE and LLE, Sciatic Nerves The Veteran’s main contention is that bilateral PN of the lower extremities is related to a service connected back disability. He does not assert, and the evidence does not show, that PN of the RLE and LLE was shown in service. However, while weakness in the lower extremities has been noted, he is not service connected for a back disability. Therefore, the second element of secondary service connection, a service connected disability, is not shown, and the medical evidence does not support the claim for secondary service connection. The Board has considered the Veteran’s lay statements that a back disorder began in service and that bilateral PN of the lower extremities is related to a service connected disability. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to offer etiologies of these disorders due to the medical complexity of the matters involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claims of service connection and there is no doubt to be otherwise resolved. As such, the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Ragofsky, Attorney Advisor The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.